Some updates with much more information from my lawyers re: my lawsuit. Context, I did biometrics with my wife in Faro in in April 23 after an early December 21 application
Timeline so far
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December 13 - submitted petition to the court
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December 14 - case was concluded for the Judge to analyze whether the case was suitable to proceed
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December 15 - judge notified the parties of the decision that the urgent proceedings were appropriate
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December 22 - AIMA filed its response
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January 08 - We were notified of the response and since AIMA did not allege any new facts, the case proceeded.
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February 05 - the procedures for attaching documents were completed and the case was sent to the judge for analysis and decision
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February 14 - still awaiting the judgeās decision
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Excerpts from the AIMA argument submitted to the court follow
The applicant has made a mandatory online pre-registration on the ARI Portal, available at
http://ari.sef.pt, regarding an application for a residence permit for investment activity (ARI), in accordance with the provisions of article 90-A of Law no. 23/2007 of 4 July, as it stood at the time.
4.o
After consulting the ARI Portal, it was found that the application had been submitted on the ARI Portal (no. 05255/ARI/094/21) with payment of the analysis fee, and was in āApplication Acceptedā status.
5.o
In fact, under the terms of article 90-A of Law no. 23/2007 of July 4: āA residence permit shall be granted, for the purpose of carrying out an investment activity, to third-country nationals who, cumulatively:
a) They meet the general requirements set out in Article 77, with the exception of paragraph 1(a);
b) Hold valid Schengen visas;
c) Regularize their stay in Portugal within 90 days from the date of first entry into national territory;
d) They meet the requirements set out in Article 3(d)ā.
6.o
The applicant alleges that he submitted an application on the ARI portal to apply for an Investorās residence permit, under the terms of article 3(d)(iii) of Law no. 23/2007 of July 4, and obtained an appointment for April 13, 2023, at the Faro Citizenās Bureau - AIMA, as well as his wife, as stated in the attached administrative files.
7.o
Applications for a residence permit for investment activity (ARI) must be submitted in person at an AIMA office of your choice, by prior appointment.
8.o
In fact, the ARI procedure begins with a request from the interested party (ARI Applicant), and before the formal processing and instruction of the process, the mandatory āonlineā registration to start the procedure and confirmation of registration (prior processing) must be verified.
9.o
Only after the application has been accepted, in the chronological order in which it was initially registered at national level, can an appointment be made, according to the availability of vacancies and for the place/date/time selected by the portal user in order to formalize the application at the AIMA service point and thus collect the biometric data that will be used to (eventually) issue the ARI title.
10.o
Therefore, the ARI process is only opened after the prior processing, and in order for a final positive decision to be made in the procedure that the applicant is requesting, it is essential, under the terms of the law, to carry out the investigative activity, in order to assess whether the legally stipulated requirements have been met, under penalty of violating the principle of inquisitiveness (cf. art. 58 of the CPA) and above all the principle of legality (cf. art. 266(2) of the CRP and art. 3(1) of the CPA).
11.o
It should be noted that only after the documentation has been completed are appointments made according to the availability of vacancies and for the place/date/time selected by the portal user, in order of entry in their initial registration.
12.o
Likewise, after the appointment for the collection of biometric data and the presentation of all the necessary documentation for the granting of the residence permit, the applications are analyzed according to the chronological date of their appointment.
13.o
In this sense, the request formulated by the plaintiff and his wife are under consideration.
14.o
We would like to reiterate the high volume of requests to this AIMA store, as well as the number that need to be analyzed. (Emphasis mine)
15.o
Nor does the claim that the legal deadline for issuing a decision was exceeded (90 days under Article 82(1) of Law 23/2007 of July 4) stand up.
16.o
In this regard, the aforementioned rule states that āThe application for a residence permit must be decided within 90 daysā, and it is true that in the case of an application for a residence permit, the law is peremptory in the sense that only the exceeding of the deadline provided for in no. 2 of art. 2 of the law can lead to a decision.
82 (relating to the renewal of residence permits), and not paragraph 1 thereof, is what generates tacit approval, and it is clear that the situation in question does not concern any renewal, so that under no circumstances would the provisions of paragraph 3 of the aforementioned rule apply to it.
17.o
Thus, when faced with the granting of a residence permit - Article 82(1) of the aforementioned law - its tatbestand is limited to the legal deadline for the decision, and the law does not draw any consequences from exceeding the deadline referred to therein.
III - CONCLUSIONS
18.o
All of the above demonstrates the obligation of the R. to assume the behavior adopted and the indisputable evidence of the respective legality, as well as the manifest unfoundedness of the A.'s claim, which if made viable would violate the principle of the legality of administrative acts.
19.o
The specific content of the public interest in question is fully and legitimately identified in the procedure followed, which respected all the guarantees of the applicant.
In these terms and to the fullest extent of the law, this reply should be
admitted for all legal purposes.
tl;dr
- AIMA says that all the facts we allege are true and that your process is waiting to be analyzed, according to the chronological order.
- AIMA argues that the 90-day period laid down in the law does not generate tacit approval and that it is not obliged to comply with it.
FWIW the judge we got was Hugo Ferreira, who accepted our urgency request
